EXHIBIT (d)(iii)
SUB-ADVISORY AGREEMENT BETWEEN
TRANSAMERICA FUND ADVISORS, INC. AND
X.X. XXXXXX INVESTMENT MANAGEMENT INC.
SUB-ADVISORY AGREEMENT, made as of the 7th day of November 2005 between
Transamerica Fund Advisors, Inc. (the "Investment Adviser"), a corporation
organized and existing under the laws of the State of Florida and X.X. Xxxxxx
Investment Management Inc. (the "Sub-Adviser"), a Delaware corporation.
WHEREAS, the Investment Adviser has entered into an Investment Advisory
Agreement dated as of November 7, 2005 ("Advisory Agreement") with Transamerica
IDEX Mutual Funds ("Transamerica IDEX"), a Delaware statutory trust which is
registered as an open-end management investment company under the Investment
Company Act of 1940 ("1940 Act"), to provide or procure investment advisory
services with respect to TA IDEX X.X. Xxxxxx International Bond (the "Fund"), a
separate series of Transamerica IDEX; and
WHEREAS, the Sub-Adviser is engaged principally in the business of
rendering investment advisory services and is registered as an investment
adviser under the Investment Advisers Act of 1940 ("Advisers Act"); and
WHEREAS, the Investment Adviser desires to retain the Sub-Adviser as
sub-adviser to assist the Investment Adviser in furnishing certain investment
advisory services with respect to the Fund, and the Sub-Adviser is willing to
furnish such services upon the terms and conditions and for the compensation set
forth below.
NOW, THEREFORE, in consideration of the premises and mutual promises herein
set forth, the parties hereto agree as follows:
1. APPOINTMENT.
The Investment Adviser hereby appoints the Sub-Adviser as its investment
sub-adviser with respect to the Fund for the period and on the terms set forth
in this Agreement. The Sub-Adviser accepts such appointment and agrees to render
the services herein set forth, for the compensation herein provided. The
Sub-Adviser shall for all purposes herein be deemed to be independent contractor
and shall, except as otherwise provided herein, have no authority to act for or
represent the Investment Adviser, Transamerica IDEX, or the Fund in any way or
otherwise be deemed the agent of any of them.
2. DUTIES AND SERVICES OF THE SUB-ADVISER.
A. Investment Sub-Advisory Services. Subject to the supervision of the
Transamerica IDEX Board of Trustees ("Board") and the Investment Adviser,
the Sub-Adviser shall act as the investment sub-adviser to, and shall
manage the day-to-day investment program of, the Fund in accordance with
the Fund's investment objective, policies, and restrictions as provided in
the Transamerica IDEX Prospectus and Statement of Additional Information,
as currently in effect and as amended or supplemented from time to time
(hereinafter referred to as the "Prospectus"), and such other reasonable
limitations as directed by the appropriate officers of the Investment
Adviser or Transamerica IDEX by notice in writing to the Sub-Adviser. In
furtherance of this duty, the Sub-Adviser, on behalf of the Fund, is
authorized, in its discretion and without prior consultation with the Board
or the Investment Adviser, to (without limitation):
(1) provide investment research and analysis concerning the Fund's
investments and conduct a continuous investment program to the Fund;
(2) place orders and negotiate the commissions (if any) for all
purchases and sales of the investments made by the Fund with or
through such brokers, dealers, underwriters or issuers as the
Sub-Adviser may select;
(3) maintain the books and records required in connection with its
duties hereunder; and
(4) keep the Investment Adviser informed of developments materially
affecting the Fund and its investments.
B. Additional Duties of the Sub-Adviser. In addition to the above, the
Sub-Adviser shall:
(1) use the same skills and care in providing its services to the Fund
as it uses in providing investment services to other fiduciary
accounts;
(2) cause its officers to attend meetings, either in person or via
teleconference, of Transamerica IDEX and furnish oral or written
reports, as Transamerica IDEX or the Investment Adviser may reasonably
require, in order to keep Transamerica IDEX and its officers and Board
fully informed as to the condition of the investments of the Fund, the
investment recommendations of the Sub-Adviser, and the investment
considerations which provide the basis for those recommendations; and
(3) furnish such information and reports as may reasonably be required
by Transamerica IDEX or the Investment Adviser from time to time.
C. Further Duties of the Sub-Adviser.
(1) In all matters relating to the performance of this Agreement, the
Sub-Adviser shall act in conformity with the Transamerica IDEX
Declaration of Trust and By-Laws, as each may be amended or
supplemented, and currently effective Registration Statement (as
defined below) and with the reasonable written instructions and
directions of Transamerica IDEX and the Investment Adviser, and shall
comply in all material respects with the requirements of the 1940 Act,
the Advisers Act, the rules thereunder, and all other applicable laws
and regulations.
(2) The Sub-Adviser acknowledges that the Fund may engage in certain
transactions in reliance on exemptions under Rule 10f-3, Rule 12d3-1,
Rule 17a-10 and Rule 17e-1 under the 1940 Act. Accordingly, the
Sub-Adviser hereby agrees that it will not consult with any other
sub-adviser of the Fund, or an affiliated person of such other
sub-adviser, concerning transactions for the Fund in securities or
other fund assets. The Sub-Adviser shall be limited to providing
investment advice with respect to only the portion of the Fund's
portfolio as may be allocated to the Sub-Adviser from time-to-time by
the Investment Adviser, and shall not consult with any other
sub-adviser as to any other portion of the Fund's portfolio concerning
transactions for the Fund in securities or other assets.
D. Custody. The Sub-Adviser shall have no responsibility with respect to
maintaining custody of the Fund's assets nor shall the Sub-Adviser have any
responsibility to acquire or become possessed of any income, whether in
kind or cash, or proceeds, whether in kind or cash, distributable by reason
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of selling, holding or controlling such assets of the Fund. The Sub-Adviser
shall affirm security transactions with central depositories and advise the
custodian of the Fund (the "Custodian") or such depositories or agents as
may be designated by the Custodian and the Investment Adviser promptly of
each purchase and sale of a security on behalf of the Fund, specifying the
name of the issuer, the description and amount or number of shares of the
security purchased, the market price, the commission and gross or net
price, the trade date and settlement date and the identity of the effecting
broker or dealer. The Sub-Adviser shall from time to time, upon the written
request of the Investment Adviser or the Fund, provide the Custodian and
the Investment Adviser with evidence of authority of its personnel who are
authorized to give instructions to the Custodian. The Fund shall direct the
Custodian to comply with all investment instructions given by Sub-Adviser
with respect to the Fund. The Fund shall instruct the Custodian to provide
the Sub-Adviser with such information as the Sub-Adviser may reasonably
request relating to daily cash levels held by the Fund. The Fund shall
provide Sub-Adviser with reasonable advance notice of any change in the
Custodian.
The Fund and the Investment Adviser shall have full responsibility for the
payment of all taxes due on capital or income held or collected for the
Fund and the filing of any returns in connection therewith or otherwise
required by law.
E. Proxy Voting and Other Actions as a Fiduciary. Unless the Investment
Adviser advises the Sub-Adviser in writing that the right to vote proxies
has been expressly reserved to the Investment Adviser or Transamerica IDEX
or otherwise delegated to another party, the Sub-Adviser shall exercise
voting rights incident to any securities held by the Fund in accordance
with its own proxy voting policies and procedures without consultation with
the Investment Adviser or the Fund. The Sub-Adviser agrees to furnish a
copy of its proxy voting policies and procedures, and any amendments
thereto, to the Investment Adviser.
The Sub-Adviser shall further respond to all corporate action matters
incident to such securities held in the Fund including, without limitation,
proofs of claim in bankruptcy and class action cases and shelf
registrations. The Sub-Adviser agrees to keep the Fund informed about any
such litigation and the actions that it intends to take. In the case of
class action suits involving issuers held by the Fund, the Sub-Adviser may
include information about the Fund for purposes of participating in any
settlements.
The Investment Adviser agrees to instruct the Custodian to forward all
proxy materials and related shareholder communications to Sub-Adviser
promptly upon receipt. The Sub-Adviser shall not be liable with regard to
voting of proxies or other corporate actions if the proxy materials and
other communications are not received in a timely manner. The Sub-Adviser
shall not be required to take any action or render any advice with respect
to any legal proceedings, including bankruptcies, involving securities, or
the issuers thereof, held in the Fund on or prior to the date of this
Agreement.
F. Use of Name. The Sub-Adviser shall give the Fund, for the term of this
Agreement, a royalty free, nonexclusive, nontransferable right to use the
name "X.X. Xxxxxx" (hereinafter referred to as the "Xxxx") in the United
States as part of the name of the Fund, provided such name is approved by
the Sub-Adviser in writing. Such right does not include the right to allow
third parties to use the Xxxx except as specifically provided in this
Agreement. The Xxxx shall not be used by the Fund at any time or in any
place or for any purposes or under any conditions except as provided in
this Section 2(F). The forgoing authorization by the Sub-Adviser to the
Fund to use said Xxxx is not exclusive of the right of the Sub-Adviser
itself to use or authorize others to use the same. The Investment Adviser
agrees that as between the Sub-Adviser and the Fund, the Sub-Adviser
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has the exclusive right to use or authorize others to use the Xxxx, and the
Investment Adviser agree to take any such action as may be requested by the
Sub-Adviser to give full effect to the provisions of this Section 2(F).
Neither the Fund nor the Investment Adviser shall retain any right to use
of the Xxxx after the termination of this Agreement. Upon termination of
this Agreement, the Fund will use its best efforts to change the name of
the Fund so as to eliminate all reference to the Xxxx and will not
thereafter transact any business in a name containing the Xxxx in any form
or combination whatsoever, or (except as may otherwise be required by law)
designate itself as the same entity as or successor to any entity of such
name, or otherwise use the Xxxx or any other reference to the Sub-Adviser.
Further the Fund will immediately terminate all use of the Xxxx and destroy
any remaining unused sales documentation, promotional, marketing,
advertising or other written printed or electronic material or performance
information that contains the Xxxx. The Fund agrees to use its best efforts
to ensure that the nature and quality of the services rendered in
connection with the Xxxx shall conform to the terms of this Agreement and
any amendments thereto. Such covenants on the part of the Investment
Adviser and the Fund shall survive termination of this agreement.
3. COMPENSATION.
For the services provided by the Sub-Adviser pursuant to this Agreement, the
Sub-Adviser shall receive monthly an investment sub-advisory fee at the annual
rate (as a percentage of average daily net assets) as specified in Schedule A of
this Agreement. If this Agreement is not in effect for an entire month, the
amount of sub-advisory fee payable hereunder shall be pro-rated accordingly.
4. EXPENSES.
During the term of this Agreement, the Sub-Adviser will bear all expenses
incurred by it in the performance of its duties and its provision of services
hereunder, other than the cost of investments (including brokerage fees)
purchased and sold for the Fund. Notwithstanding the foregoing, the Sub-Adviser
shall not bear expenses related to the operation of the Fund, including but not
limited to, taxes, interests, brokerage fees and commissions, proxy voting
expenses and extraordinary Fund expenses.
5. DUTIES OF THE INVESTMENT ADVISER.
A. The Investment Adviser shall continue to have responsibility for all
services to be provided to the Fund pursuant to the Advisory Agreement and
shall oversee and review the Sub-Adviser's performance of its duties and
services under this Agreement.
B. The Investment Adviser has furnished the Sub-Adviser with copies of each
of the following documents and will furnish to the Sub-Adviser at its
principal office all future amendments and supplements to such documents,
if any, as soon as practicable after such documents become available:
(1) The Transamerica IDEX Declaration of Trust and By-Laws, as each is
in effect on the date hereof and as amended from time to time;
(2) Certified resolutions of the Board authorizing the appointment of
the Investment Adviser and the Sub-Adviser and approving this
Agreement;
(3) The Transamerica IDEX Registration Statement under the 1940 Act
and the Securities Act of 1933, on Form N-1A, as filed with the
Securities and Exchange Commission
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("SEC") relating to the Fund and its shares and all amendments thereto
("Registration Statement"); and
(4) A certified copy of any publicly available financial statement or
report prepared for Transamerica IDEX by certified or independent
public accountants, and copies of any financial statements or reports
made by the Fund to its shareholders or to any governmental body or
securities exchange.
The Investment Adviser shall furnish the Sub-Adviser with any further
documents, materials or information that the Sub-Adviser may
reasonably request to enable it to perform its duties pursuant to this
Agreement.
C. During the term of this Agreement, the Investment Adviser shall furnish
to the Sub-Adviser for its prior approval, at its principal office, all
prospectuses, proxy statements, reports to shareholders, sales
documentation, promotional, marketing, advertising and other written,
printed or electronic material or performance information or data prepared
for distribution to shareholders of the Fund or the public, which include
the Xxxx or refer to the Fund, the Sub-Adviser or investment companies or
other advisory accounts advised or sponsored by the Sub-Adviser in any way,
prior to a use thereof which has not been previously approved by the
Sub-Adviser. The Investment Adviser shall not use any such materials
without the Sub-Adviser's prior written approval, which approval shall not
be unreasonably withheld; and the Investment Adviser shall not use any such
materials which do not include the Xxxx if the Sub-Adviser reasonably
objects in writing within ten (10) business days (or such other time as may
be mutually agreed upon) after the Sub-Adviser's receipt thereof.
6. BROKERAGE.
A. The Sub-Adviser will effect securities and other transactions for the
Fund through brokers or dealers of its choice. The Sub-Adviser agrees that,
in placing such orders it will attempt to obtain the best execution of its
orders. Consistent with this policy, the Sub-Adviser, in selecting broker
dealers to execute transactions on behalf of the Fund, will consider all
factors it deems relevant, including, without limitation, the breadth of
the market in the security, the price of the security, the financial
condition and execution capability of the broker or dealer and the
reasonableness of the commission, if any, for the specific transaction and
on a continuing basis. In selecting brokers or dealers to execute a
particular transaction, the Sub-Adviser is authorized to consider the
brokerage and research services (within the meaning of Section 28(e) of the
Securities Exchange Act of 1934, as amended) provided to the Fund and/or
other accounts over which the Sub-Adviser or its affiliates exercise
investment discretion. In no instance will Fund securities be purchased
from or sold to the Sub-Adviser, or any affiliated person thereof, except
to the extent permitted by exemptive order of the SEC or in accordance with
applicable laws and regulations.
B. On occasions when the Sub-Adviser deems the purchase or sale of a
security to be in the best interest of the Fund, as well as other clients
of the Sub-Adviser, the Sub-Adviser, to the extent permitted by applicable
laws and regulations, may, but shall be under no obligation to, aggregate
the securities to be purchased or sold. In such event, allocation of the
securities so purchased or sold, as well as the expenses incurred in the
transaction, will be made by the Sub-Adviser in the manner the Sub-Adviser
considers to be the most equitable and consistent with its fiduciary
obligations to the Fund and to its other clients over time. The Investment
Adviser acknowledges that, in some cases, this procedure may adversely
affect the price paid or received by the Fund or may limit the size of the
position that may be acquired or sold for the Fund.
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7. OWNERSHIP OF RECORDS.
The Sub-Adviser shall maintain all books and records required to be maintained
by the Sub-Adviser pursuant to the 1940 Act and the rules and regulations
promulgated thereunder with respect to transactions on behalf of the Fund. In
compliance with the requirements of Rule 31a-3 under the 1940 Act, the
Sub-Adviser hereby agrees (i) to preserve for the periods prescribed by Rule
31a-3 under the 1940 Act any records that it maintains for the Fund that are
required to be maintained by Rule 31a-1 under the 1940 Act, and (ii) to provide
the Fund with access to or copies of any records that it maintains for the Fund
upon reasonable request by the Fund.
8. REPORTS.
The Sub-Adviser shall furnish to the Board or the Investment Adviser, or both,
as appropriate, such information, reports, evaluations, analyses and opinions as
the Sub-Adviser and the Board or the Investment Adviser, as appropriate, may
mutually agree upon from time to time.
9. SERVICES TO OTHER CLIENTS.
Nothing contained in this Agreement shall limit or restrict (i) the freedom of
the Sub-Adviser, or any affiliated person thereof, to render investment
management and corporate administrative services to other investment companies,
to act as investment manager or investment counselor to other persons, firms, or
corporations, or to engage in any other business activities, or (ii) the right
of any director, officer, or employee of the Sub-Adviser, to engage in any other
business or to devote his or her time and attention in part to the management or
other aspects of any other business, whether of a similar nature or a dissimilar
nature. Further, Investment Adviser understands, that Sub-Adviser now acts, or
may in the future act, as an investment adviser to fiduciary and other managed
accounts, and as investment adviser or sub-investment adviser to other
investment companies or accounts, including other investment companies and
accounts following the same investment strategy as the Fund. Investment Adviser
has no objection to Sub-Adviser acting in such capacities, provided that
whenever the Fund and one or more other investment advisory clients of
Sub-Adviser have available funds for investment, investments suitable and
appropriate for each will be allocated in a manner believed by Sub-Adviser to be
fair and equitable to each over time, however there can be no assurance that a
particular investment opportunity which comes to the attention of the
Sub-Adviser will be allocated in any particular manner. In addition, Investment
Adviser understands, that the persons employed by Sub-Adviser to assist in
Sub-Adviser's duties under this Agreement will not devote their full time to
such service and nothing contained in this Agreement will be deemed to limit or
restrict the right of Sub-Adviser or any of its affiliates to engage in and
devote time and attention to other businesses or to render services of whatever
kind or nature. Sub-Adviser may give advice and take action with respect to any
of its other clients which may differ from advice given or actions taken with
respect to the Fund, or the timing or nature of action taken with respect to the
Fund.
10. THE SUB-ADVISER'S USE OF THE SERVICES OF OTHERS.
The Sub-Adviser may (at its cost except as contemplated by Section 6 of this
Agreement) employ, retain, or otherwise avail itself of the services or
facilities of other persons or organizations for the purpose of obtaining
statistical and other factual information, advice regarding economic factors and
trends, advice as to occasional transactions in specific securities, accounting,
administrative, reporting and ancillary services or such other information,
advice, or assistance as the Sub-Adviser may deem necessary, appropriate, or
convenient for the discharge of its obligations hereunder or otherwise helpful
to the Sub-Adviser, as appropriate, or in the discharge of the Sub-Adviser's
overall responsibilities with respect to
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the other accounts that it serves as investment manager or counselor, provided
that the Sub-Adviser shall at all times retain responsibility for making
investment recommendations with respect to the Fund.
11. LIABILITY AND INDEMNIFICATION OF THE SUB-ADVISER.
The Sub-Adviser may rely on information reasonably believed by it to be accurate
and reliable. Except as may otherwise be provided by the 1940 Act, neither the
Sub-Adviser nor its officers, directors, employees or agents shall be subject to
any liability to the Investment Adviser, the Fund or any shareholder of the Fund
for any error of judgment, mistake of law or any loss arising out of any
investment or other act or omission in the course of, connected with or arising
out of any service to be rendered hereunder, except by reason of willful
misfeasance, bad faith or gross negligence in its performance of its obligations
and duties under this Agreement or by reason of its reckless disregard of its
obligations and duties under this Agreement.
Sub-Adviser does not guarantee the future performance of the Fund or any
specific level of performance, the success of any investment decision or
strategy that Sub-Adviser may use, or the success of Sub-Adviser's overall
management of the Fund. The Fund and the Investment Advisor understand that
investment decisions made for the Fund by Sub-Adviser are subject to various
market, currency, economic, political and business risks, and that those
investment decisions will not always be profitable. Sub-Adviser will manage only
the assets of the Fund allocated to its management by the Investment Adviser and
in making investment decisions for the Fund.
The Sub-Adviser shall indemnify and hold harmless the Investment Adviser, the
Fund and their respective directors, trustees, officers, employees or agents
from any and all claims, losses, expenses, obligation and liabilities (including
reasonable attorneys fees) ("Losses") arising or resulting from the
Sub-Adviser's willful misfeasance, bad faith or gross negligence in its
performance of its obligations and duties under this Agreement or by reason of
its reckless disregard of its obligations and duties under this Agreement.
The Sub-Adviser shall not be liable for any special, consequential or incidental
damages.
12. INDEMNIFICATION BY THE INVESTMENT ADVISER.
The Investment Adviser shall indemnify and hold harmless the Sub-Adviser and its
directors, trustees, officers, employees or agents from any and all Losses
arising or resulting from the Sub-Adviser's performance of its duties and
obligations under this Agreement except to the extent such Losses arise or
result from Sub-Adviser's willful misfeasance, bad faith or gross negligence in
its performance of its obligations and duties under this Agreement or by reason
of its reckless disregard of its obligations and duties under this Agreement.
The Investment Adviser shall not be liable for any special, consequential or
incidental damages.
13. REPRESENTATIONS OF THE SUB-ADVISER.
The Sub-Adviser represents, warrants, and agrees as follows:
A. The Sub-Adviser: (i) is registered as an investment adviser under the
Advisers Act and will continue to be so registered for so long as this
Agreement remains in effect; (ii) is not prohibited by the 1940 Act or the
Advisers Act from performing the services contemplated by this Agreement;
(iii) has met, and will continue to meet for so long as this Agreement
remains in effect, any applicable federal or state requirements, or the
applicable requirements of any
7
regulatory or industry self-regulatory agency, necessary to be met in order
to perform the services contemplated by this Agreement; (iv) has the
authority to enter into and perform the services contemplated by this
Agreement; and (v) will immediately notify the Investment Adviser of the
occurrence of any event that would disqualify the Sub-Adviser from serving
as an investment adviser of an investment company pursuant to Section 9 (a)
of the 1940 Act or otherwise.
B. The Sub-Adviser has adopted a written code of ethics complying with the
requirements of Rule 17j-1 under the 1940 Act and 204A-1 under the Advisers
Act and will provide the Investment Adviser and Transamerica IDEX with a
copy of such code of ethics and any amendments thereto, together with
evidence of adoption for review and approval by the Board. The Sub-Adviser
understands that the Board is required to approve the Sub-Adviser's code of
ethics and acknowledges that the Agreement is conditioned upon such Board
approval.
C. The Sub-Adviser has adopted proxy voting policies and procedures
reasonably designed to ensure that the proxies are voted in the best
interests of the Sub-Adviser's clients including the Fund and its
shareholders and complying with Rule 206(4)-6 under the Advisers Act and
will provide the Investment Adviser and Transamerica IDEX with a copy of
such policies and procedures and any amendments thereto, together with
evidence of adoption for review and approval by the Board. The Sub-Adviser
understands that the Board is required to approve the Sub-Adviser's proxy
voting policies and procedures and acknowledges that the Agreement is
conditioned upon such Board approval.
D. The Sub-Adviser has provided the Investment Adviser and Transamerica
IDEX with a copy of its Form ADV as most recently filed with the SEC and
will, promptly after filing any material amendment to its Form ADV with the
SEC, furnish a copy of such amendment to the Investment Adviser.
E. The Sub-Adviser has adopted compliance policies and procedures
reasonably designed to prevent violations of the Advisers Act and the rules
thereunder, and has provided Transamerica IDEX and the Investment Adviser
with a copy of such compliance policies and procedures (and will provide
them with any material amendments thereto). To the extent applicable to the
Sub-Adviser's duties under this Agreement, the Sub-Adviser agrees to assist
the Fund in complying with the Fund's compliance program adopted pursuant
to Rule 38a-1 under the 1940 Act. The Sub-Adviser understands that the
Board is required to approve the Sub-Adviser's compliance policies and
procedures and acknowledges that the Agreement is conditioned upon such
Board approval.
F. The Sub-Adviser will manage the Fund so that the Fund will comply with
the diversification requirements of Subchapter M of the Internal Revenue
Code, and will immediately notify the Investment Adviser and the Fund upon
having a reasonable basis for believing that the Fund has ceased to comply
with such requirements.
G. The Sub-Adviser shall notify the Investment Adviser and the Fund
immediately of any material fact that becomes known to the Sub-Adviser
relating to the services performed by the Sub-Adviser hereunder that is not
contained in the Registration Statement, or any amendment or supplement
thereto, or of any statement contained therein relating to the services
performed by the Sub-Adviser hereunder that becomes untrue in any material
respect.
H. The Sub-Adviser shall not divert the Fund's portfolio securities
transactions to a broker or dealer in consideration of such broker or
dealer's promotion or sales of shares of the Fund, any other series of
Transamerica IDEX, or any other registered investment company.
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14. REPRESENTATIONS OF THE INVESTMENT ADVISER.
The Investment Adviser represents, warrants and agrees that it (i) is registered
as an investment adviser under the Advisers Act and will continue to be so
registered for so long as this Agreement remains in effect; (ii) is not
prohibited by the 1940 Act or the Advisers Act from performing the services
contemplated by this Agreement; (iii) has met, and will continue to meet for so
long as this Agreement remains in effect, any applicable federal or state
requirements, or the applicable requirements of any regulatory or industry
self-regulatory agency, necessary to be met in order to perform the services
contemplated by this Agreement; (iv) has full power and authority to appoint
Sub-Adviser to manage the Fund in accordance with the terms of this Agreement;
(v) has the authority to enter into and perform the services contemplated by
this Agreement; and (vi) will immediately notify the Sub-Adviser of the
occurrence of any event that would disqualify the Investment Adviser from
serving as an investment adviser of an investment company pursuant to Section
9(a) of the 1940 Act or otherwise.
15. TRADE SETTLEMENT AT TERMINATION.
Termination will be without prejudice to the completion of any transaction
already initiated. On, or after, the effective date of termination, the
Sub-Adviser shall be entitled, without prior notice to the Investment Adviser or
the Fund, to direct the Custodian to retain and/or realize any assets of the
Fund as may be required to settle transactions already initiated, and to pay any
outstanding liabilities of the Sub-Adviser with respect to such transaction.
Following the date of effective termination, any new transactions will only be
executed by mutual agreement between the Investment Adviser and the Sub-Adviser.
16. FORCE MAJEURE.
Neither party to this Agreement shall be liable for damages resulting from
delayed or defective performance when such delays arise out of causes beyond the
control and without the fault or negligence of the offending party. Such causes
may include, but are not restricted to, Acts of God or of the public enemy,
terrorism, acts of the State in its sovereign capacity, fires, floods,
earthquakes, power failure, disabling strikes, epidemics, quarantine
restrictions, and freight embargoes.
17. TERM OF AGREEMENT.
This Agreement shall become effective as of the date set forth above. Unless
sooner terminated as provided herein, it shall continue in effect for two years
from its effective date. Thereafter, if not terminated, it shall continue for
successive 12-month periods, provided that such continuance is specifically
approved at least annually (a) by the vote of a majority of the Fund's
outstanding voting securities (as defined in the 0000 Xxx) or by the Board and
(b) by the vote, cast in person at a meeting called for the purpose, of a
majority of the Trustees who are not interested persons (for regulatory
purposes) of Transamerica IDEX or the Investment Adviser. This Agreement may be
terminated at any time, without payment of any penalty, on 60 days' written
notice to the Investment Adviser or the Sub-Adviser, as appropriate, by (i) the
Board, (ii) a vote of a majority of the outstanding voting securities of the
Fund, (iii) the Investment Adviser, or (iv) the Sub-Adviser. This Agreement
shall terminate automatically in the event of its assignment (as defined or
interpreted for regulatory purposes) or the termination of the Advisory
Agreement.
18. NOTICES.
Any notice shall be sufficiently given when sent by certified U.S. mail,
national express delivery service, or facsimile to the parties at the address
below:
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If to Transamerica IDEX:
Transamerica IDEX Mutual Funds
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Investment Adviser:
Transamerica Fund Advisors, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Sub-Adviser:
X.X. Xxxxxx Investment Management Inc.
Attention: Xxxxxxxx X. Xxxxxxx
000 Xxxxx Xxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
19. AMENDMENT OF AGREEMENT.
No provision of this Agreement may be changed, waived, discharged, or terminated
orally, but only by an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge, or termination is sought, and no
amendment of this Agreement shall be effective until approved by the Board and,
solely to the extent required by the 1940 Act, regulations thereunder and/or
interpretations thereof, the shareholders of the Fund.
20. MISCELLANEOUS.
A. Governing Law. This Agreement shall be construed in accordance with the
laws of the State of Delaware without giving effect to the conflicts of
laws principles thereof, and the 1940 Act. To the extent that the
applicable laws of the State of Delaware conflict with the applicable
provisions of the 1940 Act, the latter shall control.
B. Captions. The captions contained in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
C. Entire Agreement. This Agreement represents the entire agreement and
understanding of the parties hereto and shall supersede any prior
agreements between the parties relating to the subject matter hereof, and
all such prior agreements shall be deemed terminated upon the effectiveness
of this Agreement.
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D. Severability. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected, and to this extent, the provisions of
this Agreement shall be deemed to be severable.
E. Definitions. Any question of interpretation of any term or provision of
this Agreement having a counterpart in or otherwise derived from a term or
provision of the 1940 Act shall be resolved by reference to such term or
provision of the 1940 Act and to authoritative interpretations thereof.
F. Confidentiality. The Sub-Adviser will maintain the strictest confidence
regarding the business affairs of Transamerica IDEX and the Fund provided,
however, that notwithstanding the foregoing, the Sub-Adviser may disclose
such information as required by applicable law, regulation or upon request
by a regulator or auditor of Sub-Adviser. Further, to the extent that any
market counterparty with whom the Sub-Adviser deals, or any service
provider with whom the Sub-Adviser contracts for the provision of services
related to Sub-Advisers obligations under this Agreement, requires
information relating to the Fund (including, but not limited to, the
identity of the Fund and market value of the Fund), the Sub-Adviser shall
be permitted to disclose such information to the extent necessary to effect
transactions on behalf of the Fund, or provide such services to Sub-Adviser
in accordance with the terms of this Agreement. Any information, including
information on portfolio transactions, recommendation and/or written
reports furnished by the Sub-Adviser to Transamerica IDEX and/or the
Investment Adviser will be treated as confidential, and for the exclusive
use and benefit of Transamerica IDEX and the Investment Adviser, except as
disclosure may be required by applicable law. Furthermore, except as
required by law (including, but not limited to semi-annual, annual or other
filings made under the 0000 Xxx) or as agreed to by the Investment Adviser
and Sub-Adviser, the Investment Adviser and the Fund will not disclose, in
any manner whatsoever except as expressly authorized in this Agreement, any
list of securities held by the Fund for a period of at least 30 days after
month end, except that the Fund's top 10 holdings may be disclosed 16 days
after month end. In addition, the Investment Adviser may disclose, earlier
than 30 days after month end, a list of the securities held by the Fund to
certain third parties who have entered into a confidentiality agreement
with the Transamerica IDEX on behalf of the Fund.
G. Anti-Money Laundering. The Investment Adviser and the Fund acknowledge
that the Fund is in compliance, and will continue to comply, with all
applicable anti-money laundering regulations. Further, each the Investment
Adviser and the Fund agree to provide any documentation or information the
Sub-Adviser may reasonably request for the purpose of complying with its
own anti-money laundering obligations.
H. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original of the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized signatories as of the date and year first
above written.
TRANSAMERICA FUND ADVISORS, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
X.X. XXXXXX INVESTMENT MANAGEMENT INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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SUB-ADVISORY AGREEMENT
SCHEDULE A
PORTFOLIO SUB-ADVISER COMPENSATION*
--------- -------------------------
TA IDEX X.X. XXXXXX 0.20% of assets up to $100 million of average daily net
INTERNATIONAL BOND assets;
0.17% of next $150 million of average daily net assets;
0.16% of next $250 million of average daily net assets;
0.15% of next $500 million of average daily net assets;
and
0.12% of average daily net assets in excess of $1 billion
* As a percentage of average daily net assets on an annual basis.
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